A UK-based cyberlaw blog by Lilian Edwards. Specialising in online privacy and security law, cybercrime, online intermediary law (including eBay and Google law), e-commerce, digital property, filesharing and whatever captures my eye:-)
Based at The Law School of Strathclyde University . From January 2011, I will be Professor of E-Governance at Strathclyde University, and my email address will be lilian.edwards@strath.ac.uk .

Thursday, August 07, 2014

Three myths that need nailed about the right to be forgotten (and one question)

1Everyone thinks it’s a bad idea, so why hasn’t
it gone yet, already.

No they don’t, actually. Just the people who get to write in mass
media. Few people in Europe, and fewer still in the US, realise that a
surreptitious propaganda war is being fought around the simple idea that if personal
information has been distributed about you, which is erroneous, outdated,
incomplete or in some way unreasonably harms you, then you should have the right to have that
information rectified or take down. All that is new about the Google Spain decision is that it extends
this right from people or hosts who publish the data, to search engines that
link to it.

But this basic concept worries Google, a
lot. Partially because it might cost them money and reduce credibility in the integrity
of their database, but mostly on principle : because it implies that states and
courts – and worse still European states and courts – have a right
to have a say in regulating Google’s business activities. And the right to be forgotten also worries the
media, a lot : because they fear it might interfere with their freedom to write
lucrative stories hostile to the subject of the piece. (This fear is,
incidentally, misguided – see myth 2 below).

So if you honestly think the right to be
forgotten is a bad idea, then that is your (sic) right. But don’t believe the
hype.

2 Well, whoever’s pushing the opposition to
the right to be forgotten, it’s clearly a bad idea because it destroys free
speech.

No it doesn’t. The foundational idea of EC
data protection law – that you should have the right to control the processing
of data about yourself - has been uncontroversial in Europe since 1995, or earlier.Imagine that outdated bad debt information still
scars your credit record; or you posted a stupid picture of yourself drunk on Facebook when you were 13 and now it haunts
your applications for responsible jobs; or perhaps you shared an intimate
picture of yourself with your ex-boyfriend when you were young and in love and now
he has posted it on a revenge porn site.

Is it such an unreasonable idea to be able
to clear the slate in these circumstances? And is there really a compelling public
interest in ephemeral quotidian details about ordinary people, which in a pre-digital
world would have long faded into obscurity?

Of course there needs to be a balance with
the public interest, if such rights are not to become a whitewash for public
figures disguising their shady dealingsor bolstering their PR-created reputations. But this has never been doubted. The Google Spain decision very clearly reads
in an exception that if a data subject played a role in “public life”, then the “preponderant
interest of the general public” – their right to know – would win out. The draft
Data Protection Regulation, which would reform data protection law and put the
right to be forgotten on a clearer, statutory basis goes further, including extensive
reference to the need to balance both “freedom of expression” and the “historical,
statistical and scientific” record.

Finally, both existing and new law
recognise the rights of journalists to report on the public record by giving
them exemption from DP law almost entirely. Google argued it was a journalist
in the Google Spain case, and failed:
but for conventional media , the right to be forgotten is simply not a threat. (Arguably
it might even be good for it to incentivise journalists to investigate more
using professional skills, and rely on flaky Google and Wikipedia data less.)

One, it might be hypothesised that
Google are occasionally ignoring the
clear instructions of the court to take the public record into account, and sometimes allowing delinking when they
should have refused, so as to generate scare take down stories that discredit
the right to be forgotten. On this, like Francis Urquart in House of Cards, I couldn’t possibly comment.

Second, there is a popular
misconception that any Google takedown means the content disappears from the
Web. This again is a myth that needs shot. First, the content stays up on the original
page – only the link disappears. This is
obvious, though often ignored. But, secondly, and rather more subtly, only the link from the name of the person making
the take down request to the story that name appears in disappears.

So, in one of the much publicised Guardian stories allegedly removed by
Google, it turned out the person making the erasure request was not the public
figure the article was about (let’s say X), but an obscure person who’d been
named in comments (let’s call him/her Y). You say, but the article still disappears,
right? No. Only if you search on Y, will
the link not come up. A journalist searching on X (as is rather more likely) however would still find the information right
there. (And since I can find numerous stories about Adam Osborne’s Muslim wedding on page 1 of the Google results by searching
on “Adam Osborne Muslim”, including the
original 2011 Guardian story, it looks quite likely that’s what was going
on there.)

If you want to worry about
invisible censorship on the Internet, try looking at copyright rather than privacy
for a moment. Jimmy Wales says (as of 6 August 2014) that Google have received
over91,000 removal requests under
the right to be forgotten since 13 May 2014, when the Google Spain decision was delivered. In that time, Google will
probably have received 81 million
requests for URLs to be taken down on copyright grounds. Many of these are
known to be sometimes completely spurious, and while a few of these are
protested, most are completely unnoticed. Are
these not also part of our history?

But more fundamentally, what
exactly is this “right to remember”? Remember what? Do you have a right to remember
that I bit my brother when I was 8, and he broke my front tooth in revenge? I
am a law professor and he is a lawyer. This sentence may now be spidered by
Google. Is this banal anecdote therefore now part of the “public record” – the all-encompassing
true historical account Jimmy Wales defends so severely (I do after all have a
Wikipedia page) – or is it valueless
gossip that in a pre-Googlified world would have vanished outside of my
immediate family within days?

In Dave
Eggers The Circle, a satire that
is fast becoming fact, keeping any information to yourself is seen as so
selfish and so threatening that a sheer desire for solitude instead of being “live”
on the Internet becomes antisocial behaviour, with brief moments free of the omnipresent
public gaze snatched in toilet cubicles. In this world, “secrets
are lies”, “sharing is caring” and “privacy is theft”. Is this where we
want the “right to remember” to take us?

1 comment:

Ultimately we have to question whether Google actually cares about the content of pages at all. Their business is powered by advertising dollars. So a page that offends one random person isn't going to be on their radar. It's simple for them to just remove it without looking.